Bolstered by a victory for broadcasters against Aereo last month, Fox on Monday challenged the legality of a Dish Network feature that allows subscribers to watch station feeds on devices outside the home.
In oral arguments before the 9th Circuit Court of Appeals, Fox’s legal team sought to reverse a lower court ruling in which a federal judge refused to grant a preliminary injunction that would put an immediate halt to Dish’s Dish Anywhere service, concluding that they had not proven they would suffer irreparable harm if it continued.
But Richard Stone of Jenner & Block, representing Fox, said that stations do suffer harm because Nielsen does not measure ratings from the devices. “We are losing viewership because it is not being measured,” he said. Fox also contends that the service would affect its retransmission negotiations with other multichannel distributors.
Dish is using Slingbox technology for its Anywhere service, and has made much of the fact that the broadcasters have not challenged its legality up until now. The Slingbox was first introduced in 2005 and deployed in the Dish services in 2012.
Stone compared Dish’s Sling service to Aereo, the streaming company that halted last month after the Supreme Court ruled that it was infringing in offering broadcast streams without permission. Although Dish does license rights to retransmit Fox content, Stone said its contract with Fox prohibits it from streaming their stations over the Internet.
Nevertheless, Judge Marsha Berzon seemed skeptical of the Dish-Aereo comparison.
“The Supreme Court has all sorts of caveats about how this is about Aereo and nothing else,” she said. She added, “I don’t think you can stand there and say it’s the same thing.”
Dish’s legal team, led by Josh Rosencranz of Orrick, argues that the Aereo decision does not impact their case. Aereo’s system used centralized remote antennas assigned to each subscriber, while Sling “is just like a DVR or VCR — it is built right into the Hopper with Sling DVR in customers’ living rooms.”
“Customers pay for the right to receive works, with Fox’s authorization, and do receive them at home before sending them to themselves,” Dish’s lawyers wrote in a letter to the court last month.
Dish says that their Sling technology is no different from that used by consumers when they bought Slingboxes on their own.
Fox claims that Dish has used a “rhetorical sleight of hand” to confuse the court into believing that they are challenging the legality of standalone Slingboxes. Rather, they contend that their case is over the service that Dish provides in deploying Sling technology.
“By refusing to enforce Fox’s property rights, the district court has imposed a compulsory license no different than forcing a landowner to allow trespassers to travel across her property as long as they pay a toll set by the court,” Fox’s legal team said in its brief. “That can’t be right.”
Fox also is in the midst of separate litigation over Dish’s offering of Hopper features that allow subscribers to automatically delete commercials from programming they record.